Astrid R Adderley v Burns House Group of Companies Ltd

• Jurisdiction: Bahamas
• Court: Industrial Court (Bahamas)
• Judgment Date: 17 February 2006
• Docket Number: No.872 of 2005

In the matter of the Industrial Relations Act

And

In the matter of the Employment Act, 2001

Astrid Regina Adderley

Applicant

and

Burns House Group of Companies Limited

Respondent

No.872 of 2005

INDUSTRIAL TRIBUNAL

NASSAU

Counsel for the Applicant — Ms. Monique Gomez

Counsel for the Respondent — Rawson McDonald Esq.

DECISION AND REASONS:

The Facts:

1 The Applicant, aged 61 years, was at all material times the Purchasing Manager of the Respondent having been assigned to that position in January of 2002.

2 The Applicant alleges that her contract of employment was unilaterally varied by the Respondent insofar as her salary was reduced from $84,000.00 per annum to $60,000.00 per annum without her consent.

3 The Applicant was made redundant on December 3, 2004, but alleges, that her redundancy was not genuine, because another person is employed by the Respondent “performing the same functions” as she did during the course of her employment.

4 Further and/or in the alternative the Applicant alleges and maintains that she is entitled to redundancy payments based on her former salary of $84,000.00 per annum, and not based on the salary of $60,000.00 per annum which she received during the period January 1, 2002, until she was purportedly made redundant on December 3, 2004 from the Respondent, despite her protest.

5 The Applicant further alleges that she is entitled to damages with respect to the repudiation of her contract of employment during the period immediately aforesaid equivalent to the salary differential between $84,000.00 and $60,000.00.

6 The Respondent admits that it did reduce the Applicant's salary as alleged, but avers that the Applicant consented to the variation of her contract of employment, albeit not expressly, but impliedly by her course of conduct.

7 The Respondent further avers that the Applicant's redundancy was indeed genuine due to a reorganization/streamlining of the Respondent's operations.

8 In the circumstances the Respondent avers that she is not entitled to damages for repudiation of her contract of employment as alleged; neither is she entitled to redundancy pay based on her former salary of $84,000.00 per annum.

The Evidence:

9 The Applicant testified that she commenced working with Butler & Sands Company Limited on November 1, 1976, in the capacity of Financial Accountant.

10 She said that Butler & Sands Company Limited was sold to the Respondent on March 31, 2000. At the time of the sale she was Director of Administration and her salary was $72,000.00 per annum plus bonus in the amount of $25,000.00 per annum or $30,000.00 per annum depending upon the profitability of the Respondent.

11 She testified that after the Respondent took over Butler & Sands Company Limited, she continued working in the said capacity as Director of Administration.

12 A meeting was held with all employees and they were all advised that there would be no changes — business would go on as usual.

13 She testified that some time after the takeover, changes began occurring. She was ultimately told that she would be reassigned to work in the capacity of Purchasing Manager.

14 She noted however, that her salary did not change in the interim.

15 She said that prior to her assignment in the capacity of Purchasing Manager, she received a letter dated April 4, 2000, from Mr. Philip Hillier, the Chief Operating Officer as follows:

“Astrid Adderley c/o Butler & Sands

Dear Astrid:

As you have now heard, the Sands family have decided to. sell their shares in Butler & Sands Company Limited to the shareholders of Burns House Limited.

This probably came as a surprise to you and you may quite naturally be concerned about your future and the future of the Company. Yesterday, Mr. Garet Finlayson, the new President, visited most of the departments and met with as many staff as possible and assured them that “only the shareholders have changed” and it is “business as usual”.

1 would just like to confirm this and to assure you that Butler & Sands will continue as a separate entity, furthermore, your positions are safe and there will be no redundancies or loss of seniority.

Most of you have worked for many years for Mr. Sands and have built a relationship of friendship and loyalty, so it is going to be strange not seeing him around anymore. I remember leaving myself after 35 years and it took several months to get over the void it created in my life. This is especially true when you love your job and the people you work with. Luckily I have an opportunity to return to the fold and I look forward to reviewing old friendships and welcoming new ones.

We are all part of the same team and we have a very important task ahead of us, your support will be most appreciated, I am looking forward to working with you.

Yours sincerely,

Phillip Hillier”

16 Following this letter, a newsletter dated May 18, 2000, was circulated to staff of Butler & Sands Company Limited and two (2) associated companies as follows:

“Butler & Sands Company Limited Wholesale Wines & Spirits Todhunter-Mitchell

As promised in our first meeting, I am writing to you about our progress to date which is to be followed by a General Staff meeting in Nassau on Monday, May 22, 2000, and at the beginning of June in Freeport.

• 1. FRANCHISING

  All of you are now aware that the Directors would like to see the retail side of our business handed over to the staff, in the form of “Franchises”. The actual terms of the Franchise Agreement are being prepared by our lawyers and as soon as they have been finalized, we will let you know.

  Those of you who are interested in taking over a shop, should have written to us by now. You will be asked to purchase the inventory and any future purchases from the Company, so that adequate stocks are maintained.

  The Company will keep a stock control and your accounting records so that you know how you are progressing. For this service, a franchise fee will be charged.

• 2. EXECUTIVE BOARD AND DEPARTMENT HEADS

  The following is an organizational chart of the Executive Board and Department Heads showing the key people who will be running our respective departments in Nassau. Over the next two to three weeks, I shall be meeting with the office staff individually. I have received job descriptions from the majority of you, however, if you have not yet done so, please forward your job description to my Secretary, Ms. Carolyn Knowles.

• 3. GENERAL MANAGER — WHOLESALE WINES & SPIRITS

  I have two prospective candidates for this important position. Once the interviews have been completed, I will let you know our decision immediately. In the meantime, I would like to thank the team at Wholesale Wines & Spirits for continuing to manage under such trying circumstances.

• 4. RELOCATION OF WHOLESALE WINES & SPIRITS

  There has been some concern that Wholesale Wines & Spirits (WWS) and Todhunter-Mitchell (THM), which are owned 100% by Butler & Sands, would be absorbed into the structure of Butler & Sands.

  At the outset, it was made clear that all companies will continue to operate as separate entities. By June 30, 2000, WWS has to vacate its warehouse and shop which are located adjacent to Asa H. Pritchard, as the lease has expired and the Pritchards need the space.

  Plans are in place to move the whole operation to the Bethel Robertson building on the East/West Highway. At that location, we will have proper offices for our staff and a 5,000 sq. ft. shop, as well as a storage area to efficiently cater to our customers. The warehouse will also be very spacious with a drive-in cooler for our fine range of wines. Todhunter-Mitchell's offices will also be located in this building.

• 5. PRODUCT RANGE

  By now all of our shops and warehouses should have ample quantities of those brands that are distributed by our respective Companies. This applies to all sizes and each marketing department is responsible for checking on the warehouses and shops to ensure that this policy is enforced.

• 6. PENSION PLAN

  As you know, the Brewery already has a Pension Plan and our Group of Companies are to be included. Mrs. Heather Smith — has attended a preliminary meeting and has reported to me, that the Directors are anxious to proceed with the integration of all staff in such a plan, as soon as possible.

• 7. TODHUNTER-MITCHELL SHOP

  Whenever you have time, you should visit the site of this elaborate 4,000 sq. ft. shop on Woodes Rodgers Wharf. It is really a masterpiece… so watch out Bay Street!!

• 8. GENERAL MEETINGS

  There will be a General Staff Meeting for all respective Companies as follows:

  Butler & Sands

  Monday, May 22, 2000, at 8:00 AM in the warehouse on JFK drive.

  Wholesale Wines & Spirits

  Tuesday, May 23, 2000, at 9:00 AM in the main shop on Robinson Road.

  Todhunter-Mitchell

  Wednesday, May 24, 2000, at 9:00 AM in the shop on Rosetta Street.

  Freeport

  During my two day visit on May 31 and June 1.

  Family Islands

  I plan to visit the other Family Islands before 16 ^th June.

Finally, I must express my gratitude to all of you for the support that you are giving to me. These are very trying times of frustration, anxiety and uncertainty, and I commend you for continuing to persevere despite these aggravations. On Monday, I will have a wee surprise for you!

Best wishes and keep up the good work!!

Philip Hilller

Chief Operating Officer”

17 It was noted that the organizational chart referred to in item 2 of the newsletter cited the Applicant as Vice President Administration to whom Mrs. Heather Smith and P. Nichols of the Human Resources and Warehouse departments respectively reported.

18 The Applicant testified that shortly thereafter, she received another re-assignment together with increment in salary (without entitlement to bonus) confirmed by letter dated August 16, 2000, from the said Mr. Hillier as follows:

“Mrs. Astrid Adderley

Vice President...